MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           25 September 2001 
	DOCKET NUMBER:   AR2001058036

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Carl W. S. Chun		Director	
	Ms. Wanda L. Waller		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Ronald E. Blakely		Member	
	Mr. Lester Echols		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  Reinstatement and/or back pay due to wrongful discharge from the U.S. Army and correct discharge characterization of “General Under Honorable Conditions” to honorable. 

APPLICANT STATES:  That he was wrongfully discharged from the Army and given a discharge characterization (as changed by the Army Discharge Review Board (ADRB)) to general.  He contends that the action was taken against him without sufficient evidence, in violation of his First, Sixth and Fourteenth Amendment rights and in violation of the Administrative Procedures Act and the Military Whistleblower Protection Act.  Further, he contends that because of a lack of prior reprimand and nonjudicial punishment, the action taken was unjust.  
In support of his application, he submits a copy of the Minority View of the ADRB (14-page addendum). 

EVIDENCE OF RECORD:  The applicant's military records show:

The applicant entered active duty on 3 July 1979 and trained as a medical specialist and drill sergeant.

The facts and circumstances surrounding the applicant’s discharge are not contained in the available records.  However, records show that a board of officers was appointed by the major general in command of the 4th Infantry Division to determine if the applicant should be discharged for misconduct before the expiration of his service.  The board of officers convened on 22 February 1995 at Headquarters, U. S. Army Dugway Proving Ground, Utah,  

The applicant was present during the board proceedings and was represented by civilian counsel which he retained at his own expense.  After the presentation of all evidence and witnesses, the members of the board began deliberations on 27 February 1995.  At 5:20 pm on 27 February 1995 the board presented its findings and recommendations.  The board of officers determined that the case was appropriate for disposition within the criteria of Army Regulation 635-200, Section III, Paragraph 14-12, for misconduct due to minor disciplinary infractions and commission of a serious offense.  The board of officers recommended that the applicant be discharged from the service because of misconduct with issuance of a discharge under other than honorable conditions.  The board of officers determined that  there was a preponderance of evidence on the following:  (1) conspiracy to defraud the Government by submitting a fraudulent household goods moving claim; (2) disobedience and failure to follow regulations; (3) making false official statements, failure to provide accurate information, representing himself to be an ordained minister when he was an “associate minister”, providing false official statements, misrepresenting his base pay; (4) malingering after falsely claiming he sustained injuries as a result of an accident; (5) making a false claim to the Government; and (6) impersonating a sergeant first class and a Department of Army Congressional Liaison.
The applicant’s DD Form 214 (Certificate of Release or Discharge from Active Duty) shows that he was discharged under other than honorable conditions on 12 May 1995 under the provisions of Army Regulation 635-200, paragraph 
14-12c, for misconduct.

On 2 October 2000, the ADRB considered the applicant’s request to upgrade his discharge to Under Honorable Conditions (General) and restore his pay grade to staff sergeant (E-6).  The applicant and his civilian counsel personally appeared before the ADRB.  After considering all of the evidence submitted, the ADRB voted 3-1-1 to change the characterization of the applicant’s service from other than honorable to general and voted 4-1 not to change the reason for discharge. The ADRB recommended upgrade of the applicant’s discharge based on the length and quality of service which, in the opinion of the ADRB panel members, mitigated the applicant’s misconduct.

The ADRB member, who did not vote with the majority, prepared a 14-page minority view in which he stated his belief that the applicant should be granted an honorable discharge and a change in the reason for discharge from misconduct to “Secretarial Authority”.  He argued that the preponderance of evidence did not support separation for misconduct, that the command’s “sanctioning” of the applicant for communications to a Member of Congress was “repugnant” and that, in view of sanctions against the applicant, he “lost confidence in the sense of fairness” in this process.  In support of his positions, the ADRB minority member essentially reviewed each charge against the applicant.  The President of the ADRB, who was not the presiding officer or a member of the ADRB panel which heard the case, reviewed both the findings of the majority and the minority in this case and directed implementation of the majority recommendation.  As a result of the decision of the ADRB, the applicant’s discharge was upgraded and his rank at the time of separation was restored to staff sergeant/pay grade E-6.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct and commission of a serious offense.  Paragraph 14-12c of this regulation provides for the separation of enlisted personnel due to commission of a serious offense.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the soldier’s overall record.  

Army Regulation 635-200, paragraph 3-7, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and it is concluded:

1.  The Board considered the applicant’s contention that he was wrongfully discharged from the Army and given a general discharge and that he should be reinstated with back pay.  The Board also considered the applicant’s contention that the action taken against him was without sufficient evidence in violation of his First, Sixth and Fourteenth Amendment rights and in violation of the Administrative Procedures Act and the Military Whistleblower Protection Act.

2.  Evidence of record shows that the applicant’s case was considered by a board of officers which received and evaluated all evidence presented and the testimony of all witnesses.  The board of officers found that the applicant had in fact committed the offenses of which he was accused and recommended to the convening authority that the applicant should be separated for misconduct with an under other than honorable conditions discharge.  Evidence of record shows that, subsequent to the recommendation of the board of officers, the applicant was separated with a discharge under other than honorable conditions under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct.

3.  Evidence of record also shows that the applicant’s case was considered by the ADRB and that the applicant with his counsel appeared before this panel to present evidence and testimony.  After considering all of the evidence and testimony, the ADRB found that the length and quality of the applicant’s service mitigated his misconduct and determined that the characterization of service was inequitable.  As a result, the ADRB voted 3-1-1 to upgrade the characterization of the applicant’s discharge from under other than honorable conditions to general, but voted 4-1 not to change “misconduct” as the reason for discharge. 

4.  Evidence of record shows that subsequent to these votes by the ADRB, the panel member who did not vote with the majority filed a minority view.  After due consideration of the findings by the minority and majority in this case, the President of the ADRB directed implementation of the majority recommendation. 

5.  This Board considered the minority view which was the only evidence provided by the applicant in support of his application to the ABCMR.  The Board noted the minority view had been duly considered by the President of the ADRB prior to rendering his decision which resulted in substantial relief for the applicant.  
6.  As a result of this Board’s review of the facts in this case to include the proceedings of the board of officers and the proceedings of the ADRB, it was determined that the applicant’s misconduct diminished the quality of his service below that meriting a fully honorable discharge.  In arriving at this conclusion,  the Board found that the matters contained in the minority view were not sufficient to warrant upgrade of the applicant’s discharge to honorable or to warrant reinstatement with back pay.  Therefore, this Board determined that the applicant’s separation with a general discharge under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct, was administratively correct, was in conformance with applicable regulations, and was warranted by the applicant’s overall service.  

7.  The Board also reviewed the applicant’s contention that the action was taken against him without sufficient evidence in violation of his First, Sixth and Fourteenth Amendment rights and in violation of the Administrative Procedures Act and the Military Whistleblower Protection Act.  However, these contentions are a summary of the comments contained in the ADRB minority view which the Board has already determined are without sufficient merit to warrant upgrade of his discharge from general to honorable or reinstate him with back pay.

8.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

9.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

JNS___  REB_____  LE_______  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2001058036	
SUFFIX		
RECON		
DATE BOARDED	20010925	
TYPE OF DISCHARGE	(UOTHC)	
DATE OF DISCHARGE	19950512	
DISCHARGE AUTHORITY	AR 635-200 paragraph 14-12c  	
DISCHARGE REASON	Misconduct – Army Discharge Review Board upgraded discharge to general on 20001002	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	110.0200	
2.		
3.		
4.		
5.		
6.